12 Fla. L. Weekly Supp. 114a
Insurance — Personal injury protection — Fraud — Abuse of discretion to dismiss action based on fraud — Insured’s alleged false testimony regarding her whereabouts following accident and mode of transportation used to leave accident scene had no bearing on issue at trial concerning reasonableness of insured’s failure to attend independent medical examinations, and inconsistent reasons proffered by insured for failure to attend IMEs reflect on insured’s credibility but do not rise to fraud — Appeals — Absence of transcript — Despite not including transcript of first trial, record is adequate to determine whether reversible error exists where it includes transcript of second trial delineating insured’s inconsistent testimony
MARIA LAMORA, Appellant, v. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 03-005AP. L.C. Case No. 98-10613CC05. November 9, 2004. An appeal from the County Court, Miami-Dade County, Leo Adderly, Judge. Counsel: Michael I. Libman, Law Offices of Michael I. Libman, for Appellant. Christa Mansholt-Choy, Conroy, Simberg, Ganon, Krevans & Abel, P.A., for Appellee.
(Before BLAKE, JOHNSON, LANGER, JJ.)
(BLAKE, Judge.) This is an appeal of an order entered by the County Court in Miami-Dade County. The order dismissed the Appellant’s, Maria Lamora, suit with prejudice based on fraud. Appellant alleged that she was injured in an automobile accident and sought medical treatment. She submitted her medical bills to her insurance company, United Automobile Insurance Company/Appellee. Thereafter, Appellee scheduled two independent medical examinations for Appellant and she failed to appear for both appointments. As a result, Appellee issued a letter informing Appellant that it would discontinue benefits because of her unreasonable refusal to attend the scheduled independent medical examinations (“IMEs”). Appellant filed suit against Appellee for failure to pay her medical bills.
This issue went to trial on December 2, 1999. At the trial’s conclusion, Appellee made an ore tenus motion for a directed verdict which the lower court granted. On appeal, this court reversed and remanded this action for a new trial. See Lamora v. United Automobile Insurance Company, 9Fla. L. Weekly Supp. 85a (Fla. 11th Cir. Ct. 2001). Thus, a second trial was held on August 26-27, 2002. Appellant proffers that at the conclusion of the second trial, the jury verdict was entered in favor of the Appellant.1 Following the trial, Appellee motioned the court to dismiss this action based on Appellant’s fraud. The lower court granted Appellee’s request.
Appellee claims that Appellant lied while under oath regarding two matters. The first was Appellant’s whereabouts following her accident and the mode of transportation she used to leave the accident scene. The second involved the multiple inconsistent reasons Appellant proffered for her inability to attend the scheduled IMEs.
A trial court’s decision to dismiss a plaintiff’s claim for fraud is reviewed under the abuse of discretion standard. Long v. Swofford, 805 So. 2d 882, 884 (Fla. 3d DCA 2002).
First, most courts weigh whether the fraud relates to the issue at trial. Morgan v. Campbell, 816 So. 2d 251 (Fla. 2d DCA 2002); see also Dade County v. Martinsen, 736 So. 2d 794 (Fla. 3d DCA 1999). In this case, there were two issues. They were:
1. Did the plaintiff Maria Lamora unreasonably refuse to attend her scheduled medical examination on October 23, 1997?
2. Did the plaintiff Maria Lamora unreasonably refuse to attend her scheduled medical examination on November 6, 1997?
If Appellant proffered false testimony, it would have to relate to the above issues. The first alleged lie at issue is Appellant’s whereabouts following the accident and the mode of transportation she used to leave the accident scene. While Appellant proffered three different explanations as to where she went and with whom she went after the accident, this issue has no bearing on the central issue in this case — her whereabouts at the time of the IMEs.
The next alleged lie Appellee brings to this court’s attention is Appellant’s reasons for missing the scheduled IMEs. As to the scheduled IME on October 23, 1997, Appellant gave three different reasons for her failure to attend. During her November 1999 deposition, Appellant testified that she did not attend the IME because “I didn’t have anybody to take me. I had no transportation.” (V:3; T 96). Then, at the trial on August 26-27, 2002, Appellant testified that she was unable to attend the October 23, 1997 IME because “that day the hour was too late for me.” (V:3, T 96). During the December 2, 1999 trial, Appellant testified that she was unable to attend the IME because the physician’s office was too far (V:3, T 106). Yet, during the August 26-27, 2002 trial, Appellant testified that she was unable to attend the IME because she was late and was told that the appointment would be rescheduled (V:3, T 26-27). As to the second IME on November 6, 1997, Appellee testified she was unable to attend because “I was going to go but it got too late.” Then, when confronted with a bill from South Medical Center she admitted that she went there to receive therapy instead of attending her scheduled IME (V3: T 107).
Even though the record is replete with inconsistent statements, we do not find that they rise to fraud. Fraud on the court occurs where “it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability to impartially adjudicate a matter by improperly influencing the presentation of the opposing party’s claim or defense.” Jacob v. Henderson, 840 So. 2d 1167 (Fla. 2d DCA 2003). For instance, in Jacob, a pedestrian was struck by a vehicle driven by a sheriff and initiated a lawsuit. When deposed, the pedestrian claimed she was unable to perform a number of tasks. However, the sheriff videotaped her performing tasks that she claimed she was unable to perform. This videotaped evidence was presented to the trial court, and it dismissed the suit for fraud. On appeal, the court held that while the video evidence proved that the pedestrian was able to perform tasks she denied she was unable to complete, it does not prove that she knowingly perpetrated fraud on the court since the issue being considered was the severity of her injuries, not whether she suffered any injury. Thus, the court felt that the inconsistent evidence would, at the most, lessen her credibility and the damages to which she may be entitled. Given its position, the court remanded the case with instructions to allow the jury to consider the evidence.
Likewise, the issue in this case is whether Appellant’s explanation for missing her scheduled IMEs was reasonable. Her different or inconsistent explanations do not prove that she knowingly defrauded the court. At the most, it may reflect on her credibility as a witness. We note that a jury considered the same evidence we did and found that the Appellant did not unreasonably refuse to attend both IMEs.
Appellee contends that Appellant’s failure to submit the entire record of the jury trial leaves this court with an insufficient record and as such, precludes review. Upon examination of case law, we find this argument to be incorrect. An appellate court must have an adequate record to determine if there is reversible error, not an entire record. See Applegate v. Barnett Bank of Tallahasee, 377 So. 2d 1150, 1152 (Fla. 1980). While Appellant did not provide a transcript of the first trial, the transcript of the second trial clearly delineates all of Appellant’s inconsistent testimony in her previous deposition and trials. Thus, the record before us is adequate to determine if reversible error exists.
Whenever an insured files an action for payment of PIP benefits and prevails, the insured is entitled to attorney’s fees under §627.428(1), Fla. Stat. (1997). Therefore, upon remand, Appellant is entitled to attorney fees, since she prevailed on the policy.
FOR THESE REASONS, the dismissal in favor of the Appellee is REVERSED and this cause is REMANDED to the trial court with instructions to reinstate the jury’s verdict, and enter an order awarding payment of Appellant’s medical bills and costs. (JOHNSON, LANGER, JJ. concur.)
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1This cannot be verified as the clerk has made a notation on the record that it is unable to locate this order.
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